Can post-election violence victims get justice when the accused are in power by Maina Kiai

One of the principles of international criminal law is that justice is better served closer to the victims. This principle has its roots in domestic criminal law that cases ought to be tried as close to the scene of crime as possible.

Thus, a crime committed in Kisumu is best tried in Kisumu not only to give solace and closure for the victims of the crime but also for practical purposes such as costs to witnesses, being near the scene of the crime, etc.

Of course in dictatorships, when the state wants to harass and inconvenience defendants, it can move the trial to a location far away. The Moi regime used this approach some, especially when the calls for multi-partyism were growing and many (falsely) accused persons found themselves arrested in Nairobi and then charged in their ancestral homes.

The poster child of this strategy was Pius Nyamora the publisher of the now defunct Society magazine who was charged in Mombasa, granted bail and then had to fly back and forth every two weeks for the mentions of the case which never took off.

The financial pressures eventually led to the collapse of Society and Pius moved to the USA.

This principle has been imported into soft international criminal law and comes up when accountability for international crimes such as genocide, war crimes and crimes against humanity arises. But it needs a caveat.

Yes, when there has been regime change and the alleged perpetrators do not control the levers of power, the principle makes sense. It is a sort of victors’ justice. But when the accountability is happening in spite of the regime, not because of it, we need a rethink.

Take the genocide in Rwanda. It would have been futile to try genocide cases in Rwanda had Juvenal Habyrimana still been in power--whether or not he himself had participated—as the perpetrators were closely allied to him. And the same applies for former Yugoslavia with Slobodan Milosevic.

Genocide, war crimes and crimes against humanity have links to the politics and power struggles in society. Every genocide in the world—accepted or alleged—has had political imperatives.

This is true for the Herero genocide in Namibia, the Holocaust against the Jews, the Rwandan genocide, the Cambodian genocide, and the genocide in Darfur in Sudan.

It is the same with war crimes in former Yugoslavia, northern Uganda, eastern DRC, and Central African Republic: There is always politics around them.

And the same goes for crimes against humanity in Kenya, Cote d’Ivoire, Chad, Colombia, the Occupied Territories, Northern Ireland, Iran and Iraq.

As the current Women’s Representative for Nyeri Priscilla Nyokabi explains in the documentary, “Tomorrow Will Come”, crimes against humanity are those crimes that are so brutal, so orchestrated, so severe and so systemic that they offend the collective sense of civility of the entire world. They have a political thread running through them—even if expressed in ethnic, racial or religious terms. They are so heinous and calculated that their impact crosses borders.

It is precisely because of these political imperatives that these crimes are international crimes, cognizant that domestic authorities will have no willingness to end impunity when they themselves are in power. Or their criminal justice systems are so compromised, or destroyed, by the same political imperatives that it makes no sense to use them.

This is the situation that obtains here in Kenya. Despite all the rhetoric coming fast and furious, it is impossible to try the present accused persons within the Kenyan judicial system.

First there is the “little” matter of the constitutional immunity given to the President, meaning that Uhuru Kenyatta could only be tried in Kenya if he resigned from office. And that will not happen.

The big elephant in the room, that the anti-ICC brigades are not mentioning, is the plain fact that our police are completely incapable of handling investigations that involve Big Men. It is not just a question of capacity: It is as much a question of political will.

For them, investigation is about torture and rumors and when even that is not enough they resort to extrajudicial executions. But only for ordinary people who can’t afford lawyers, let alone good ones.

Then there is the reality of our Judiciary, bar, some High Court Judges, that has shown as much incompetence and fear as previous ones. The perfect illustration being the appalling judgment of the Supreme Court on the election petitions that hashed and rehashed oral submissions, barely making mention of the written submissions they were supposed to read.

The use of a dissenting opinion from Seychelles to amend the constitution, as well as using Nigerian and Ugandan precedents--which are not exactly famous for fair elections—showed up the weakness of the Supreme Court.

And of course there was the refusal to adjudicate on whether indictees could contest for office, which is now moot given the constitutional immunity.

As for the idea that the ICC could do the cases here: If witnesses have had to be spirited into hiding across the world, just how would they come back to give evidence? It is already tough enough even from afar to give evidence against a sitting president and his deputy, so imagine how much harder it would be to so in the country.

And with our polarised, divided and politically emotional society, and our leaders’ penchant for the dramatic to curry favour with those with power, one can imagine protests and demonstrations so large that it would be virtually impossible for the judges to make it to the court room. Especially if it is our police charged with crowd control!

Can post-election violence victims get justice when the accused are in power by Maina Kiai